Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNyandarua ELC (Nyahururu) suit re land parcel Nyandarua/Nandarasi/2724· [2018] KEELC 948 (KLR)

Judith Wanjiru Thwagi & 2 others v David Nyoike Waweru and 19 others [2018] KEELC 948 (KLR)

Environment and Land Court
8 November 2018
3,202 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled that a land tribunal acting beyond its powers has no legal force, so the landowners' 2017 claim can proceed to full hearing.

What this practically means

#

Executive summary

#
The Plaintiffs, beneficiaries of the Estate of Mithanga Githinji Mithanga, sued the Defendants seeking eviction from and removal of a caution over land parcel Nyandarua/Nandarasi/2724. The 1st to 19th Defendants filed a Preliminary Objection dated 24th April 2018 seeking dismissal of the suit as res judicata by virtue of proceedings in Nyahururu PMCC Land Dispute No. 31 of 2006, which adopted an award of the North Kinangop Land Disputes Tribunal, and as time barred. The Defendants failed to file their written submissions in time and the court expunged those belatedly filed. The court applied Section 7 of the Civil Procedure Act and the criteria in Bernard Mugo Ndegwa, finding that res judicata requires sameness of parties, subject matter, title, concurrence of jurisdiction and finality. The Tribunal had exceeded its statutory jurisdiction under Section 3(1) of the repealed Land Disputes Tribunals Act by apportioning land and lifting a caution, powers reserved to the High Court; its award was a nullity and was never adopted, the miscellaneous application having abated on the objector's death on 9th November 2010. Res judicata therefore failed. On limitation, the cause of action accrued in November 2006 upon the death of the Plaintiffs' father, and the suit filed on 17th July 2017 was within the twelve-year period under Section 7 of the Limitation of Actions Act. The Preliminary Objection was dismissed with costs to the Plaintiff, and the suit proceeds to hearing on the merits.

Key legal issues

#
01

Whether the suit is res judicata in light of the North Kinangop Land Disputes Tribunal proceedings adopted in Nyahururu PMCC Land Dispute No. 31 of 2006

Holding

Res judicata fails because the tribunal acted in excess of its jurisdiction and its award was never adopted as a judgment, having abated upon the objector's death

Reasoning

Section 7 of the Civil Procedure Act requires a former suit between the same parties over the same subject matter, heard and finally decided by a competent court. Section 3(1) of the Land Disputes Tribunals Act limited tribunals to boundaries, occupation or trespass, not title. The tribunal apportioned land and lifted a caution, powers reserved to the High Court. Its award was declared abated on 9th November 2010 and never adopted, hence it is a nullity incapable of supporting res judicata.

p. 5
02

Whether the suit is time barred under the Limitation of Actions Act

Holding

The suit is not time barred as the cause of action accrued in November 2006 upon the death of the Plaintiffs' father, less than twelve years before the suit was filed on 17th July 2017

Reasoning

Section 7 of the Limitation of Actions Act bars actions to recover land after twelve years from accrual of the right. The Plaintiffs' father died in November 2006, after which the Defendants began erecting permanent houses on the suit land. The suit filed on 17th July 2017 was therefore within the twelve-year period.

p. 6
03

The scope of a Preliminary Objection and its precedence in hearing

Holding

A Preliminary Objection consists of a point of law pleaded or arising by clear implication out of the pleadings which, if argued as a preliminary point, may dispose of the suit

Reasoning

The court adopted the classic definition from Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Limited, holding that an objection seeking dismissal of the suit takes precedence over other directions and may be disposed of first by written submissions.

p. 4

Legal principles established

#
  • A decision of a tribunal acting without jurisdiction is a nullity and cannot found a plea of res judicata
  • An action to recover land must be brought within twelve years from when the right of action accrued

Court orders

#
  1. 1.The Defendants' written submissions filed on 26th July 2018 out of time are expunged from the record
  2. 2.The Preliminary Objection dated 24th April 2018 is dismissed with costs to the Plaintiff
  3. 3.The suit to proceed to full hearing on the merits

Authorities

#

Legislation

  • Civil Procedure Act Cap 21Section 7; Section 3A
  • Limitation of Actions ActSection 7; Section 9(2)
  • Land Disputes Tribunals Act Cap 303A (now repealed)Section 3(1)
  • Constitution of KenyaArticle 159
  • Civil Procedure RulesOrder 11

Cases cited (5)

  • Karia and Another vs Attorney General and Others
    [2005] 1 EA 83
  • Kenya Management vs Kenya Reinsurance Corporation
    [2007] eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd –v– West End Distributors Limited
    (1969) EA 696
  • Bernard Mugo Ndegwa -vs- James Nderitu Githae and 2 Others
    (2010) eKLR
  • Sir Ali bin Salim vs Shariff Mohamed Shatry
    Civil Appeal No. 29 of 1940
Jurisdiction invoked
Article 159 of the Constitution and Section 3A of the Civil Procedure Act invoked by the Plaintiff; Environment and Land Court original jurisdiction

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Judith Wanjiru Thwagi & 2 others v David Nyoike Waweru and 19 others [2018] KEELC 948 (KLR)", Case Analysis (2018). Nyandarua ELC (Nyahururu) suit re land parcel Nyandarua/Nandarasi/2724. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/948/eng@2018-11-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.